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Wednesday, March 2, 2011

Johnnie Baston is scheduled to be executed by the people of Ohio on 10 Mar 2011 for the murder of store owner Chong Hoon Mah. No one disputes Baston participated in the armed robbery of the store. Baston claims, however, that the actual shooting was done by a someone named Ray, who has to this day not been found.

I offer the following summary from U.S. District Court decision in Baston v. Bagley.

Chong Mah and his wife, Jin-Ju Mah, owned two retail stores in Toledo. Chong Mah managed the couple's downtown store, Continental Wigs N' Things. In addition to wigs, the store sold team logo hats and jackets. At approximately 11:30 a.m. on March 21, 1994, Jin-Ju Mah telephoned her husband and spoke to him at the downtown store. When Chong Mah failed to answer a later call, JinJu Mah became concerned. She then went to the downtown store, arriving around 5:10-5:15 p.m. She found the store unlocked and the lights on. The cash register was open and empty. In a rear storage room, Jin-Ju Mah found her husband's body—he had been shot once through the head. Chong Mah was pronounced dead at the scene.

Investigators found a single .45 caliber hollow-point slug behind the wall paneling in the room where Chong Mah was shot. An autopsy revealed that Chong Mah had been shot in the back of the head at a range of two to three inches. Examination of the crime scene caused investigators to believe that, in addition to the money in the cash register, Chong Mah's killer had also taken team logo hats and "Starter" type jackets from the store.

Also on March 21, 1994, David Smith went to downtown Toledo to meet with his parole officer. Baston accompanied him, but was not permitted to stay for the appointment. Records indicated that Smith met with his parole officer at approximately 11:30 a.m., and that the meeting lasted ten to fifteen minutes. When Smith left the meeting, he tried to find Baston. He "beeped" Baston on his pager, but there was no response. Smith then walked back and forth between the municipal building and the county jail four times, finally finding Baston in the vicinity of the municipal court. Baston and another friend, Bobby Mitchell, were in a yellow Cadillac owned by Smith's cousin, Michael Ridley. Mitchell first saw Baston on March 21, 1994 on River Street. Baston was carrying a dark brown plastic garbage bag that appeared to have something in it. Mitchell passed Baston as Mitchell went to his car, before proceeding to Smith's apartment, where he again saw Baston. Mitchell was there to see Ridley, who was also staying at the apartment.

While Mitchell was at Smith's apartment, he noticed some sports hats lined up on an end table, as well as a revolver. A short time later, Mitchell and Baston left the apartment in Ridley's Cadillac to pick up Smith downtown. When the two picked up Smith in front of the municipal court building, Mitchell was driving, Baston was in the passenger's seat, and Smith got in the back seat. Mitchell overheard Smith and Baston "mumbling" to each other, and heard Baston tell Smith "I did it." The trio then drove back to Smith's apartment.

After news coverage of Chong Mah's murder, an employee of a nearby club/ bar reported to police that at approximately 11:45 a.m. on the day of the murder, she saw a man carrying a plastic bag walk across a parking lot near the wig shop. The man caught her attention because he was heavily dressed despite it being unseasonably warm that day, and he was wearing a team logo jacket, and another jacket draped over his shoulders. She later said the man could have been Baston, but was unable to positively identify him. A patron of the bookstore adjacent to or near the wig shop told police that he thought he heard a gunshot shortly before noon on March 21, 1994.

A few days after the murder, Patricia Chininis contacted the Toledo Police. Patricia Chininis's daughter, Deana, was Smith's girlfriend. Both women also knew Baston. Patricia Chininis related that on the day before the shooting, Baston and Smith were at her house. In moving Baston's jacket, Patricia Chininis noticed it was unusually heavy. She felt the jacket, realized there was a gun in it, and told Baston and Smith never to come back to her house with a gun. Deana Chininis stated she previously saw both Smith and Baston with revolver-type guns and hollow-point bullets. Furthermore, the day or so after the murder Baston offered to give Deana's girlfriend a Starter jacket.

After receiving this information, police obtained a search warrant for Smith's apartment (where Baston was staying). Police seized four sport logo hats and several Starter jackets. A wig store employee identified these articles as being similar to those the store carried. The employee, an AfricanAmerican, also recalled that three weeks prior to the killing three AfricanAmerican males were in the store acting suspiciously. The employee overheard one of the three say to another: "No, it's a sister in here," before they left. The employee identified Baston as one of the three.

Smith, Deana Chininis, and two other persons were at the apartment when police executed the search warrant. While all four went to the police station, only Smith was cooperative. After interviewing Smith, the police obtained an arrest warrant for Baston.

Baston was arrested in Columbus, Ohio, at a church function. He was carrying a .25 caliber semi-automatic pistol and had a .45 caliber semi-automatic revolver in his luggage. The .45 caliber slug recovered at the crime scene matched those test-fired from the .45 caliber revolver seized from Baston. In an interview with Columbus police shortly after his arrest, Baston admitted participating in the robbery of the wig shop, but denied shooting Chong Mah. According to Baston, an accomplice named "Ray" took Chong Mah into the back room and shot him. Baston denied any intention to kill anyone, and claimed that Ray acted without Baston's prior knowledge.

Baston was indicted on two counts of aggravated murder and one count of aggravated robbery with a firearm specification. Each aggravated murder count carried a capital specification pursuant to R.C. 2929.04(A)(7). Baston pleaded not guilty and elected to be tried before a three-judge panel.

Baston contested that he was the principal offender in the aggravated murder. William Nappins, a defense witness, testified that while on his way to an Alcoholics Anonymous meeting at approximately 11:45 a.m. on the morning of the murder, he saw a tall, dark-skinned African-American male emerge from either the wig store or the book store next to it. The man was dressed in black and carrying a bag. Nappins's description of the man did not match that of Baston.

Johnnie Baston, a 36-year-old African American man, is scheduled to be executed in Ohio on 10 March. He was sentenced to death in 1995 for a murder committed during a robbery in 1994.

Chong Hoon Mah, a South Korean immigrant to the USA, was shot and killed on 21 March 1994 during a robbery of one of the retail shops that he owned in Toledo, Ohio. Johnnie Baston was arrested after police received information that he was involved in the crime. He told police that he had participated in the robbery with an accomplice named “Ray”, a high-ranking gang member, who was the gunman. However, police were never able to identify or locate this person, and came to believe that Johnnie Baston acted alone. He was charged, pleaded not guilty, and chose to be tried before a three-judge panel rather than a jury. The judges sentenced him to death on 27 February 1995, finding only one mitigating factor – his young age – and ruling that this was outweighed by the nature of the crime.

Johnnie Baston has been on death row for 16 years, most of his adult life. At the time of the crime, he was just past his 20th birthday. He had been abandoned by his biological mother soon after he was born, and has never seen her since, his only communication with her being a letter from her after he was sent to death row.

As a young boy, he was adopted by his aunt after she saw his bruising and malnourishment, evidence of a pattern of physical abuse and neglect in his first years at the hands of his father. At the clemency hearing before the Ohio Adult Parole Authority on 3 February 2011, his adoptive mother recalled that his parental abandonment had led to serious behavioural problems in his teenage years, culminating in her throwing him out of the home about a week before the crime.

Also at the clemency hearing was one of the prosecutors from the original trial. She said that Chong Mah’s son had asked her to appear to reiterate the victim’s family’s opposition to the execution of Johnnie Baston because of their respect for human life. Last year she and another prosecutor signed sworn statements that the Mah family had been opposed to the death penalty at the time of the trial as well. Last month, Chong Mah’s son also signed a statement that “my family and I are opposed to Mr Baston being executed”.

A senior Justice on the Ohio Supreme Court has called for abolition of the state’s death penalty, describing it as a “death lottery." By way of illustration, Johnnie Batson’s clemency petition points to the case of another defendant who was tried in the same county (Lucas County) for a comparable crime in 1994 (shooting of a store manager at close range during a robbery) and was sentenced to life imprisonment. The petition also pointed to the disproportionate number of death sentences passed against black defendants in Lucas County. Of the 21 death sentences passed there since 1981, in 16 cases the defendant was black, and in four cases white.

The parole board voted 9-0 against recommending clemency. Their recommendation is not binding on the Governor.

I oppose the execution of people who might be factually innocent of the crime for which they are to die. I suspect that to prevent the execution of the factually innocent, we might have to ban the death penalty entirely.

I find no evidence that Johnnie Baston did not participate in the armed robbery that led to the shooting death of Chong Hoon Mah. Since I limit my efforts to people who are in all respects factually innocent, I stand mute with regard to the execution of Johnnie Baston.